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Need help negotiating “legalese” surrounding Powers of Attorney or Guardianship Orders?

Sadly many enquiries are made on behalf of ageing relatives for whom the granting of power of attorney is no longer an option. In order to grant a Power of Attorney a person has to understand the legal effect of the document. So, what happens is someone is incapable of giving instructions to create a Power of Attorney? Who then takes over? Who deals with their affairs and make decisions as to their welfare? Here the appointment of a Guardian is the only realistic option.

What is a guardian?

A Guardian is appointed by a court order which authorises him or her to take decisions regarding a persons welfare and/of financial affairs when they are incapable through illness, accident or old age of making their own decisions in these matters.

Who can be appointed a Guardian?

Normally it is the individual who has cared for the person and is fully aware of that person’s circumstances and needs. Usually this will be a partner or family member but it is entirely at the court’s discretion as to who is appointed.

When can a Guardianship order be made?

An application may be made to the local Sherriff Court at anytime when decisions regarding a person’s welfare or financial affairs require to be made.

What does the order cover?

A Guardianship Order is very specific as to the powers a Guardian can use. It is entirely at the court’s discretion as to whether all of the powers sought will be granted.

How long does the order last?

Normally for three years. If the powers provided are still required thereafter, an application for renewal must be made again to the Sherriff Court. Occasionally a Sherriff may appoint a Guardian for an unlimited period.

What is the procedure?

A summary application is submitted to the Sherriff Court appropriate to where the person who is the subject of the order resides. The application will be lodged along with two medical reports and a report from a mental health officer which confirm the appropriateness of the party seeking to be appointed as guardian.

Who supervises the Guardian?

The Guardian works closely with the Office of Public Guardian based in Falkirk and requires to submit an Inventory of the Estate of the person together with a Management Plan, which sets out how the Guardian intends to look after the assets. The Guardian must keep records of any money spent for the Office of Public Guardian to examine. Where appropriate the Guardian will also work closely with the Local Authority Social Work Department to ensure that the welfare needs of the person are being met.

As local Solicitors on Deeside we offer readily accessible and detailed knowledge in this area of work. We are well placed to advise and guide through the process of wither preparing a Power of Attorney of applying for Guardianship for a family member who has become incapable of acting themselves.

Pat Gray, Private Client Partner.

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